FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE, 

Petitioner-Appellant,

v.

DONALD RUMSFELD, Secretary of No. 05-15680

Defense; LES BROWNLEE, Secretary

D.C. No. of the United States Department of  CV-04-02080- Army (Acting); REGINALD L.

BROWN, Assistant Secretary of the FCD/KJM

Army for Manpower and Reserve OPINION

Affairs; E. HUBRED TORREY,

Company Commander, and Does

1-10, inclusive.

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

October 21, 2005—San Francisco, California

Filed January 12, 2006

Before: J. Clifford Wallace, Stephen S. Trott, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Trott

559
COUNSEL

Michael S. Sorgen, San Francisco, California, for the

petitioner-appellant. 

H. Thomas Byron III, United States Department of Justice,

Washington, D.C., for the respondents-appellees. 

562 DOE v. RUMSFELD
OPINION

TROTT, Circuit Judge:

Appellant, Doe, a soldier in both the Army Reserve

National Guard of the United States and the California State

National Guard, challenges the President’s “stop-loss” authority ordering Doe to active duty for a period longer than his

enlistment. 

Doe’s challenges fall into three general arguments. First,

Doe argues the government did not satisfy the procedures

required by 10 U.S.C. § 12305 in extending his service. Second, Doe asserts that § 12305 is unconstitutional. Third, Doe

contends the “stop-loss” order extending his enlistment conflicts with other laws regulating members of the reserve military. 

The government contends as a threshold issue that we need

not address the merits of this challenge because Doe has

received new orders, rendering his challenges moot. 

We have jurisdiction pursuant to 28 U.S.C. § 1291.

Although we conclude that this case is not moot, we disagree

with Doe’s substantive arguments and affirm the district

court’s denial of Doe’s petition for writs of habeas corpus and

mandamus. 

BACKGROUND

On May 1, 2003, Doe, an eight-year veteran of the Army,

enlisted for a one-year term in the California State National

Guard and the Army Reserve National Guard of the United

States. The enlistment agreement, referred to in non-binding

recruiting material as “Try One,” allowed active duty veterans

to enlist for a one-year term before making a further service

commitment. The enlistment agreement, signed by Doe,

stated that subsequently enacted laws and regulations could

DOE v. RUMSFELD 563
affect the terms of his contract. The enlistment agreement provided also that “[i]n time of national emergency declared by

the President of the United States, I [Doe] may be ordered to

active duty” and that “my [Doe’s] enlistment may be

extended . . . .” Enlistment Doc. § C(10)(1) & (2). See also

Statement of Understanding of Reserve Obligations and

Responsibilities, § 11. 

Following his enlistment and initial training, Doe was

assigned to the 2668th Transportation Company based in Sacramento, California. In February of 2004, Doe reenlisted for

a second one-year term, extending his contract through May

1, 2005. On July 23, 2004, Doe’s unit received orders to

active-duty in support of Operation Iraqi Freedom. Doe was

notified that he would be required to serve on active duty until

March 31, 2006, approximately eleven months longer than the

term of service specified in his enlistment agreement. Pursuant to these orders, Doe’s unit was deployed to Fort Lewis,

Washington, for approximately forty-five days of training

before being sent to Iraq. 

Doe, however, was never sent to Iraq. On January 27, 2005,

in response to a medical condition, Doe received new orders

retaining him on active duty under 10 U.S.C. § 12301(d). On

January 31, 2005, Doe received his present assignment to the

California Medical Community Based Health Care Organization in Sacramento, California, where he was to receive health

care evaluations and treatment, which may result eventually

in his discharge from active duty. 

PROCEDURAL HISTORY

On October 1, 2004, Doe filed a petition for writs of habeas

corpus and mandamus, and for declaratory and injunctive

relief ordering his release from any further obligation of military service under his existing enlistment contract. In addition

to these claims, Doe argued that the involuntary extension of

his enlistment was contrary to constitutional and statutory

564 DOE v. RUMSFELD
law. On the same day, Doe sought a temporary restraining

order, which was denied on October 5, 2004. On November

5, 2004, the district court denied Doe’s motion for a preliminary injunction. Following this denial, Doe brought an interlocutory appeal to the Ninth Circuit and moved the court for

emergency injunctive relief. On January 18, 2005, we issued

an order denying the motion for injunctive relief and affirming the district court’s denial of Doe’s request for a preliminary injunction. On March 15, 2005, the district court

rendered a decision on the merits, denying Doe’s remaining

claims. On April 8, 2005, Doe timely filed his Notice of

Appeal. 

STANDARD OF REVIEW

We review a district court’s interpretation and construction

of federal statutes de novo. S.E.C. v. McCarthy, 322 F.3d 650,

654 (9th Cir. 2003). Similarly, we review challenges to the

constitutionality of a federal statute or federal regulation de

novo. See Artichoke Joe’s Cal. Grand Casino v. Norton, 353

F.3d 712, 720 (9th Cir. 2003) (statute); Gonzalez v. Metro.

Transp. Auth., 174 F.3d 1016, 1018 (9th Cir. 1999) (regulation).

DISCUSSION

A. Mootness 

[1] Fourteen days before oral argument, the government

submitted a brief suggesting Doe’s appeal is moot. The government says that Doe’s January 31, 2005 activation orders

assigning him to a medical retention center preclude him from

being subject to the “stop-loss” authority of 10 U.S.C.

§ 12305; and that, after the completion of his medical assignment, Doe “well may be discharged from the service.” Government’s Oct. 7, 2005 Brief 4. At oral argument, we asked

the government whether Doe, following his medical assignment, could be returned to active duty subject to § 12305’s

DOE v. RUMSFELD 565
“stop-loss” status. The government represented that Doe

would not be returned to active duty under § 12305 after the

medical assignment is completed. Nevertheless, Doe’s January 31, 2005 orders refer to a “temporary” assignment with

instructions to return to his permanent station at the end of the

assignment. Moreover, his current orders specify that he must

remain on active duty until January 18, 2006, as reflected in

his most recent earnings statement. Consequently, we conclude Doe continues to have a personal stake in the outcome

of this case sufficient to avoid dismissal on the ground of

mootness. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 478

(1990) (“[P]arties must continue to have a personal stake in

the outcome of the lawsuit.”) (internal citations omitted).

B. Section 12305

[2] 10 U.S.C. § 12305 maintains that “the President may

suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed

forces who the President determines is essential to the

national security of the United States.” Doe argues that an

applicable provision of law was never properly suspended,

and thus that the extension of his service was impermissible.

MILPER Message1 No. 03-040 (“MILPER Message”),

issued on November 21, 2002, operationalized the Stop Loss

policy. Santiago v. Rumsfeld, 425 F.3d 549, 556 (9th Cir.

2005) (as amended). In Paragraph 3, it states: “The provisions

of regulations governing voluntary retirements, separations,

and REFRADs2 of officers and enlisted soldiers . . . are suspended . . . .” Thus, the MILPER Message served both as a

suspension and an extension. Doe’s extension was properly

executed pursuant to the statute. 

1The military uses MILPER Messages to disseminate information

regarding procedural guidance and informative commands to those military personnel in the field. 

2REFRADs are those soldiers that have returned from active duty. 

566 DOE v. RUMSFELD
[3] Doe’s assertion is additionally foreclosed by our decision in Santiago, in which we held that the President’s power

under § 12305(a) “was properly delegated to the Assistant

Secretary of the Army for Manpower and Reserve Affairs,

who entered the stop-loss order suspending the separation

laws on November 4, 2002” pursuant to MILPER Message

No. 03-040. 425 F.3d at 557. 

Doe argues also that the President should have first made

a determination that his military service was essential to

national security. But the statute does not require the President to determine each and every person who is essential, nor

does it require that the President elucidate the reasons for his

determination. 

[4] The President declared a national emergency on September 14, 2001. Presidential Proclamation 7463, 66 Fed.

Reg. 48199 (Sept. 14, 2001); see also 69 Fed. Reg. 55313

(Sept. 10, 2004) (extending national emergency for one more

year); 50 U.S.C. § 1621(a) (conferring authority upon President to declare national emergency); Santiago, 425 F.3d at

556. In the same proclamation, he invoked his power under 10

U.S.C. § 12302 to activate members of the Army National

Guard of the United States. Id. On July 23, 2004, Doe’s unit

was activated. The activation of his unit during the state of

national emergency was enough to satisfy the statutory

requirements. Doe’s contention fails. 

C. Constitutional Arguments 

Doe argues that 10 U.S.C. § 12305(a) is unconstitutional

for three reasons. First, Doe contends that Section 12305 permits arbitrary infringement on his liberty. Second, Doe

implicitly asserts that “stop-loss” authority is an impermissible delegation of power by Congress. Third, Doe argues that

his extended enlistment violates his Fifth Amendment Due

Process rights because the government failed to provide

DOE v. RUMSFELD 567
meaningful notice of its ability to extend his enlistment. For

the reasons set forth below, each argument fails. 

1. Arbitrariness

Doe contends that 10 U.S.C. § 12305 is unconstitutional

because it fails to include boundaries on the President’s “stoploss” authority sufficient to safeguard Doe’s Fifth Amendment liberty interest. Doe’s argument ignores the language of

Section 12305 as well as the limitations of activation imposed

by 10 U.S.C. §§ 12301, 12302, and 12304. 

[5] The presidential power to extend enlistment contracts is

limited to circumstances essential to the “national security of

the United States.” 10 U.S.C. § 12305(a). Moreover, an extension of enlistment can be imposed only on “members of a

reserve component” that are “serving on active duty pursuant

to an order to active duty under authority of section 12301,

12302 or 12304.” 10 U.S.C. § 12305(a). The sections identified in § 12305(a) allow activation in limited circumstances.

Section 12301(a) provides for activation “[i]n time of war or

of national emergency declared by Congress or when otherwise authorized by law.” Section 12302, referenced by the

“stop-loss” order activating Doe, provides for activation “in

time of national emergency declared by the President . . . .”

Section 12304 allows the President to activate a limited number of reserve guard members for an operational mission lasting not more than 270 days. Consequently, the President’s

power to extend enlistments is expressly limited, and therefore, if exercised within these limits, cannot be said to be arbitrary. Doe provides no basis upon which we could review for

“arbitrariness” a military decision to activate a particular unit

for combat. The propriety of such military decisions presents

a non-justiciable question which we decline to reach. 

2. Delegation of Power

[6] To the extent Doe suggests 10 U.S.C. § 12305 is an

impermissible delegation of legislative power, he is mistaken.

568 DOE v. RUMSFELD
The Supreme Court has recognized that under Article I, Congress has wide latitude in delegating its powers. Mistretta v.

United States, 488 U.S. 361, 373 (1989). Thus, “[s]o long as

Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the

delegated authority] is directed to conform, such legislative

action is not a forbidden delegation of legislative power.” Id.

at 372 (internal citation omitted) (alteration in original). Section 12305 incorporates the intelligible principle that the President has “stop-loss” authority during “times of national

emergency.” Consequently, we conclude that 10 U.S.C.

§ 12305 is not an unconstitutional delegation of congressional

authority. See also United States v. Curtiss-Wright Exp.

Corp., 299 U.S. 304, 323 (1936) (recognizing the occasional

need for Congress to vest especially broad discretion in the

President in the area of foreign affairs). 

3. Notice

[7] Doe claims he did not have sufficient notice because he

had no reasonable expectation that he could be ordered to perform military service beyond his one-year enlistment agreement, except in rare circumstances of national exigency. In

Santiago we addressed this very argument. 425 F.3d at 559.

There, the soldier asserted a due process claim, arguing that

he was not provided sufficient notice that his enlistment

agreement could be extended. Id. We held this argument

unpersuasive because the enlistment agreement identified the

possibility that the soldier’s service could be extended. Id.

Doe’s enlistment agreement contains the same language we

held dispositive in Santiago. As in Santiago, Doe’s signed

agreement states that “[l]aws and regulations that govern military personnel may change without notice to me.” It then provides, in two additional sections of the enlistment agreement,

that Doe could be involuntarily placed into active duty if the

President or Congress declared a national emergency.3 There3

In the enlistment section titled “Partial Statement of Existing United

States Laws,” the contract states: 

DOE v. RUMSFELD 569
fore, pursuant to this language, and in light of Santiago, Doe’s

notice contention lacks merit. 

Doe attempts to distinguish Santiago by arguing that the

“Try One” moniker was misleading and precluded Doe from

receiving requisite notice. Nothing in the record suggests Doe

was misled or that the government made misrepresentations.

While the military may have marketed the program to Doe as

“Try One,” such marketing does not overcome the text of the

enlistment agreement that Doe actually signed. As we held in

Santiago, the enlistment agreement gave warning in plain language that his service could be extended. 

D. Other Statutes Regulating Military Reserves

1. Applicability of 10 U.S.C. § 12407(a)

Doe argues that his involuntary enlistment extension violates 10 U.S.C. § 12407(a). Doe’s postulate relies upon a

strained interpretation that discounts the statutory scheme regulating the federal and state National Guard. 

[8] Doe signed a dual enlistment contract, under which he

enlisted in the California Army National Guard and as a

Reserve of the Army with membership in the National Guard

I may be required to perform active duty or active duty for training without my consent (other than as provided in item 8 of this

document) as follows: 

(1) In time of national emergency declared by the President of the

United States, I may be ordered to active duty (other than for

training) for not more than 24 months. 

Enlistment Doc. § C(10). The Statement of Understanding of Reserve

Obligation and Responsibilities that accompanies the enlistment document

similarly states, “I may at any time be ordered to active duty involuntarily

as a member of a unit in the event of a war or national emergency declared

by Congress or the President of the United States . . . .” 

570 DOE v. RUMSFELD
of the United States. Enlistment Doc. § E(17). As set forth in

Johnson v. Powell, Congress established the “dual enlistment”

system in 1933 to avoid limitations on federal service found

in the Militia Clause of Article I of the Constitution by organizing a separate reserve of federal soldiers under Congress’

broader power to raise and support armies. 414 F.2d 1060,

1063 (5th Cir. 1969); see also Act of June 15, 1933, 48 Stat.

153 & 155-56, §§ 1 & 58 (1933). Congress incorporated the

National Guard of the United States as a reserve component

of the military, subject to activation “in time of war or

national emergency and at such other times as the national

security may require.” 10 U.S.C. § 10102. As such, the

National Guard of the United States may be “ordered to active

duty and retained as long as so needed” at times when Congress determines that “more units and organization are needed

for the national security than are in the regular components of

the ground and air forces.” 10 U.S.C. § 10103; see also 10

U.S.C. §§ 12301, 12302, and 12304 (setting forth the specific

circumstances in which the National Guard of the United

States can be ordered into action). In contrast to these statutes

that apply to the National Guard of the United States, 10

U.S.C § 12407(a) restricts the extension of enlistments of soldiers in the National Guard of a State:

Whenever the President calls the National Guard of

a State into Federal service, he may specify in the

call the period of the service. Members and units called shall serve inside or outside the territory of the

United States during the term specified, unless

sooner relieved by the President. However, no member of the National Guard may be kept in Federal

service beyond the term of his commission or enlistment. 

In light of this language it would be improper for a President

to extend, for “Federal” service, the enlistment of a member

of the National Guard of a State. 

DOE v. RUMSFELD 571
[9] Despite this distinct statutory scheme, Doe argues that

the reference to “National Guard” in the third sentence of

§ 12407(a) applies to both the National Guard of a State and

the National Guard of the United States. Accordingly, Doe

asserts that his extension, regardless of his membership in the

National Guard of the United States, is a violation of 10

U.S.C. § 12407(a). This interpretation is unconvincing and

inconsistent with case law. 

When interpreting a statute, a court is “guided not by a single sentence or member of a sentence, but [should look] to the

provisions of the whole law, and to its object and policy.”

John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank,

510 U.S. 86, 94-95 (1993) (internal quotation omitted). Furthermore, “where possible, provisions of a statute should be

read so as not to create a conflict.” La. Pub. Serv. Comm’n v.

F.C.C., 476 U.S. 355, 370 (1986). Doe’s interpretation violates both of these statutory construction principles. 

The first sentence of § 12407(a) grants the President power

to call the “National Guard of a State into Federal service.”

(Emphasis added.) This sentence limits the scope of

§ 12407(a) to the National Guard of a State. Consequently,

when the third sentence uses the phrase “National Guard,” it

is exclusively referring to the “National Guard of a State.” 

Furthermore, Doe’s interpretation would implicitly repeal

portions of 10 U.S.C. § 12305 that expressly allow enlistment

extensions for members of the National Guard of the United

States. Therefore, because “repeals by implication are not

favored,” Doe’s interpretation and argument must be rejected.

See Cook County v. United States ex rel. Chandler, 538 U.S.

119, 121 (2003) (internal citations omitted). 

2. Applicability of 10 U.S.C. § 12103 and 32 U.S.C.

§§ 302 and 303. 

[10] Doe argues that his enlistment extension violates 10

U.S.C. § 12103 and 32 U.S.C. §§ 302 and 303. Doe’s argu572 DOE v. RUMSFELD
ments are not well-founded. 32 U.S.C. §§ 302 and 303 explicitly govern the State National Guard and not the National

Guard of the United States. See 32 U.S.C. § 101(3)-(5)

(“Army National Guard means that part of the organized militia of the several States and Territories . . . .”). Thus, because

Doe’s extension involved his enlistment in the National Guard

of the United States, 32 U.S.C. §§ 302 and 303 are simply

inapplicable. 

[11] 10 U.S.C. § 12103 is also inapplicable, but for different reasons. Section 12103 provides that reserve enlistments

of members of the National Guard of the United States are

extended until six months after the “end of a war or emergency” declared by Congress. Pursuant to this language, Doe

asserts this is the only way an enlistment can be extended.

Doe’s argument is not persuasive. 

[12] Section 12103 identifies certain circumstances where

an act of Congress automatically extends the enlistment of a

member of the National Guard of the United States. There is

nothing in the language of the statute to indicate this is the

exclusive manner in which an enlistment can be involuntarily

extended. Moreover, to implicitly read into the statute this

exclusivity, thereby creating a direct conflict with 10 U.S.C.

§ 12305, is contrary to established case law. See, e.g., La.

Pub. Serv. Comm’n, 476 U.S. at 370 (identifying the principle

that when interpreting statutory schemes, the court should,

where possible, read the provisions of the statute so as not to

create a conflict with other statutes). 

[13] Even if we were to accept Doe’s assertion and read

§ 12305(a) to be in conflict with 10 U.S.C. § 12103 and 32

U.S.C. §§ 302 and 303, we still could not construe these sections to override the provisions of § 12305. Section 12305(a)

plainly states the President’s authority as identified in the section applies “[n]otwithstanding any other provision of law.”

Thus, even if we found § 12305 to be in conflict with the statDOE v. RUMSFELD 573
utes identified by Doe, which we do not, those conflicting

terms would be expressly revoked.

CONCLUSION

[14] Doe’s arguments challenging the President’s “stoploss” authority are not persuasive. Pursuant to Santiago, the

“stop-loss” order extending Doe’s enlistment is a valid exercise of presidential power authorized by 10 U.S.C.

§ 12305(a). Section 12305 comports with the requirements of

the Fifth Amendment’s Due Process Clause and is a proper

delegation of congressional power. Finally, the “stop-loss”

order does not conflict with 10 U.S.C. §§ 12103 and 12407(a)

or 32 U.S.C. §§ 302 and 303 and, even if conflicting, the language of § 12305(a) would overide those conflicting provisions. Consequently, the judgment of the district court is

AFFIRMED. 

574 DOE v. RUMSFELD